What's at Stake in the GOP's Challenge to Health Care Reform

Imagine for a moment a sudden outbreak of smallpox (weaponized
smallpox, if your taste runs to Jack Bauer-style scenarios). Airborne,
highly contagious, deadly, it has the capability of spreading across the
country and beyond in weeks, if not contained with a program of
vaccination--vaccination not for a few, but for everybody, as soon as
possible.

If Congress passed emergency authorization for the
program, would you want a judge to block it? What if some citizens
preferred not to be vaccinated? What if they promised Scout's honor not
to get smallpox, or if they did, not to give it anyone else?

Would
you want the judge to halt the program on the grounds that not getting
vaccinated was "inactivity," and thus beyond Congress's power over "to
regulate commerce with foreign nations, and among the several states,
and with the Indian Tribes?" Those who refused vaccination might act as
reservoirs of the disease, and thus affect commerce. What if the judge
conceded that point, but said Congress still couldn't reach them because
they weren't voluntarily in the stream of commerce?

What if
the judge blocked the program because Congress relied on private medical
personnel to administer the vaccine? Congress could have created a
program by which thousands of full-time federal employees would give the
inoculations--that would be constitutional--but using non-employees
made the program unconstitutional. Would that make sense?

While
the disease spread, and hundreds or even thousands died, would you thank
the judge for his fidelity to the pre-1937 vision of the Commerce Clause? Or would you think that, no matter what was written in the
judge's order, the irretrievable spread of the epidemic really had
affected commerce and should have been stopped?

These reflections
were spurred by the decision
Monday in the case of Virginia v. Sebelius, the lawsuit brought by Ken
Cuccinelli, Virginia's right-wing zealot attorney general, to spare the
uninsured of his state the indignity of government-funded health care.
Judge Henry Hudson of the United States District Court for the Eastern
District of Virginia agreed with Cuccinelli that the so-called
"individual mandate" provision of the Act exceeds the Commerce Clause
because it seeks to "compel an individual to involuntarily enter the
stream of commerce by purchasing a commodity in the private market."

For
those of you scoring at home, currently it's Affordable Health Care Act
2, right-wing opponents 1. Two federal district courts have upheld the
program; Judge Hudson is the first district judge to hold against it.
That's neither here nor there--the final score will almost certainly be a
best-of-nine championship series played here in Washington at the
Supreme Court. But it does underline that the issues in the case are
close. The weight of academic opinion so far supports the Act, but some
of the very brightest (and perhaps not coincidentally most
conservative) of my colleagues disagree.

Readers would do well to
discount the importance of Judge Hudson's decision, which is about as
significant as an early NBA playoff game. And partisans might nurture
the Christmas spirit by refraining either from the right-wing spike
dance or the progressive chant of "You're blind, ump!" These are hard
issues; federal judges, by and large, don't ask for these cases to land
in their courtrooms. Having read the opinion, I see nothing in it to
suggest that Judge Hudson is not doing his duty to construe the statute
as he reads it, compare it with the Constitution as he understands it,
and announce whether the two go together. His opinion was respectful to
both sides and--in stark contrast to the intemperate earlier interim
decision of Senior Judge Robert Vinson of a Florida district
court--devoid of inflammatory rhetoric, judicial triumphalism, or
talk-radio style taunting. No one can seriously argue that the judge
did not earn his salary.

I do think, however, that Judge Hudson's
opinion is wrong. Grievously wrong.
Threat-to-the-nation-from-rampaging-smallpox wrong.

The cheeky Kagan responded,
"Sounds like a dumb law." And a law that requires eating vegetables (or
joining a gym, or subscribing to a newspaper) really is a dumb law.
There is no overarching national necessity behind it. It's hard to
imagine Congress claiming with a straight face that vegetable portions
were an emergency, or that they needed to be regulated as part of a
comprehensive scheme.

That's the answer to those who will shortly
post below that "'Professor Epps, if that is really what he is,
clearly believes Congress can regulate all human activity." (Good to see
you guys again, by the way.) Congress can't regulate everything; what
it can regulate is everything that needs to be reached as part of a
comprehensive scheme required by a necessity that affects the nation.

Health
care is such a necessity. Before Republicans hit upon the argument
that health care isn't part of commerce, they harped for years on the
dangers of regulating "one-sixth of the economy." After years of debate
(more than half a century in fact) and extensive fact-finding, Congress
decided that health care could only be provided effectively through a
nationwide program.

Ironically, Republican opponents concede that
if Congress had passed a mandatory program funded by payroll and income
taxes--a kind of Medicare for all ages--their challenge would have no
merit. (In case the supple Cuccinelli later decides to reverse field, I
personally saw him say this on October 21, 2010, at the Washington
Legal Foundation.) Those taxes would of course be no less compulsory
than the "mandate." But Congress' partial reliance on the private market
(which in other contexts Republicans rhapsodically defend) somehow guts
the nation's power to solve its health care problem.

Well,
everybody's got to have an argument, and the right has settled on this
one. But conservatives should be careful what they wish for. Every
constitutional decision is to be weighed not only (or even primarily) by
the specific facts at issue, but by the potential mischief of the
precedent that will be set. A decision voiding the health care act
would strike at the heart of our nation's ability to deal with
situations like my smallpox hypothetical.

Wait a minute, you say, health care regulation isn't like a smallpox epidemic. No?
Certainly health care is a life-or-death issue for millions of
Americans, including many who will be insured under the Act but will
fall through the cracks in the current system. Who could seriously
claim that the 50.7
million people who currently have no health care do not constitute
an emergency?

A judge, to strike down the Act, must conclude
that no reasonable Congress could have concluded that the situation
needed nationwide, comprehensive regulation. And that no reasonable
Congress could have concluded that the "mandate" is a key part of a
comprehensive scheme to ensure near-universal coverage. Because if both
those things are true, then the "inactivity" of refusing to take
prudent care to prepare for an individual's health care needs is as
potentially damaging as the "inactivity" of refusing needed vaccination
at a time of epidemic.

What if these "inactive" individuals
promise will really never, never, contract a catastrophic sickness or
suffer a devastating injury, that neither they nor their children will
ever, ever appear in an emergency room as uninsured patients? That rings
as hollow as my hypothetical objectors' promise not to get or spread
smallpox. These things aren't voluntary; taxes, sickness, death--you
can't opt out, no matter how you try. And, I'm sorry to the hard-core
libertarians out there, you cannot agree to waive life-saving care for
your children. That argument was over long ago.

The "inactivity"
argument depends on the idea that the Constitution prohibits the United
States from running a modern economy, in which all of us are involved
by virtue of our membership in the nation. As in any highly
industrialized nation, we're all in this together. And if we adopt an
old-fashioned minimal view of national authority, we will have confirmed
that 21st century America has chosen decline over economic leadership.

I
make no predictions. Judge Hudson's logic may very well
prevail--especially if the conservative majority of the Supreme Court, a
year or two hence, cannot resist the temptation to deliver a knockout
blow to a president they despise. But such a decision would sow mischief
in at least two ways. First, stripping this country of its first
modern health care system would deform the Constitution, set back the
cause of effecting legislative self-government, and spread suffering
over decades or even generations.

That may not matter so much to
those who make the decision. Federal judges, like state attorneys
general, are covered by generous health-insurance programs, and may not
feel the whole thing is such a big deal. And our current Justices make
no secret of their seething contempt for America's legislature.

But
if history teaches us anything, it teaches that emergencies come like
thieves in the night, and that when they do, we look to government to
step in. A strong nation preserves the tools it may need to avert
disaster. Throwing those tools away would be an even greater mischief.

If the United States finds Congress's powers gutted because of this
partisan dispute, we will one day have reason to regret it.